ICANN and the US government: The end of the affair?

The US Department of Commerce and ICANN published their ‘Affirmation of Commitments’ on 30 September 2009 which brings the Joint Project Agreement (JPA) to an end (more on this here)

An eleven year long process of oversight through a direct relationship of accountability between the US government and ICANN is now over. This is a step forward although civil society commentators are clear that this does not mean that ICANN is entirely independent of US control and influence through instruments like the IANA contract, the VeriSign contract and California law.

The main shift is the establishment of four review processes which will assess ICANN’s performance in four areas in three year cycles. These areas are:

Ensuring accountability, transparency and the interests of global Internet users

Preserving security, stability and resiliency

Promoting competition, consumer trust and consumer choice

The WHOIS data base

The review teams will be jointly established by the ICANN Chair or CEO and the Chair of the GAC. These reviews will replace the role of the US DoC in reviewing ICANN’s performance. One can see an increased role for the GAC in oversight of ICANN here, but it is a ‘soft’ form of oversight – the ‘recommendations of the reviews will be provided to the Board and posted for public comment. The Board will take action within six months of receipt of the recommendations’. In other words, there is no enforcement mechanism for the recommendations – the ICANN Board is not obliged to implement the recommendations, i.e. the reviews will have the soft force of persuasion and moral or political pressure but not the instruments of ‘hard’ oversight. This is reinforced in the Affirmation by the clear statement that ‘ICANN is a private organization and nothing in this Affirmation should be construed as control by any one entity.’ So the Board remains the key body of power within ICANN and the least accountable, as there is no democratic mechanism for the bottom-up ICANN community to dismiss the Board.

Nevertheless this is a step forward, with respect to diluting unilateral US oversight of ICANN. It remains to be seen to what extent civil society is represented on any of the review teams and whether the recommendations of the reviews are accepted and implemented by the ICANN Board. The EU has come out in support of the continuation of the IGF ‘as it is the only place where all internet-related topics can be addressed by a wide range of stakeholders from all over the world, including Parliamentarians.’ It will be interesting to see what role the IGF may be able to play as a space where the reviews can be deliberated on in a multi-stakeholder fashion and boost the transparency of the review process and perhaps its soft power.

At the semantic level there is also a subtle change in the description of ICANN’s role. It is now the ‘multi-stakeholder, private sector led, bottom up policy development model for DNS technical coordination that acts for the benefit of global Internet users’. ‘Multi-stakeholder’ now comes first where previously ‘private-sector led’ was prioritised. This may seem a small and incidental change of emphasis, but it does acknowledge that the efforts of all stakeholders over the past decade who have argued that internet governance is a complex system that requires the participation of all stakeholders and who have shown up at the annual meetings of the Internet Governance Forum to reinforce this position, have been worthwhile.